FAB Telemedia to Court: FCC Exclusive Spectrum Explanation Is Barred

Says it was a novel definition it does not get to introduce in oral argument

The FCC offered up a definition of exclusive access to spectrum in oral argument that it had not used in the relevant orders or briefs to the court, and thus should be barred from relying on it to make its legal case.

That was the message from the attorney for Free Access and Broadcast (FAB) Telemedia to the U.S. Court of Appeals, which heard that oral argument last month.

FAB is challenging how the FCC is implementing the decision not to protect low-power TV (LPTV) stations from being displaced in the post-broadcast incentive auction repack of TV stations.

"[C]ounsel for respondent FCC asserted that 'exclusive' spectrum use means only that wireless carriers licensed for the post-auction 600 MHz Band are 'entitled to access to that spectrum without harmful interference from any secondary operations, including LPTV' (Oral Arg. Recording at 12:45 to 13:15)," FAB told the court. "This interpretation was not included in the FCC’s orders or briefs and is thus barred from being relied on…"

The FCC attorney said that it was always clear that exclusive access of winning wireless bidders to their new spectrum meant access without any interference from LPTV stations. He conceded there was no new explanation of exclusive access in any of the orders but because the FCC had always included "no interference" in the definition of exclusive.

(Photo via Tori Rector's FlickrImage taken on July 21, 2016 and used per Creative Commons 2.0 license. The photo was cropped to fit 3x4 aspect ratio.)